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Fifteenth round of trade talks opens in Auckland today

The fifteenth round of Trans-Pacific Partnership Agreement negotiations kicks off today in grey and rainy Auckland. The comprehensive free trade talks, running from 3-12 December and with chapters spanning market access, intellectual property, investment and telecommunications aims to provide a “gold standard” trade and investment model for regional integration.

As the negotiations get underway once more, it’s worth summarising what we know to date about copyright provisions in the TPP, implications for Australia and more broadly, some recent developments.

1. This week Canada and Mexico participate in TPP negotiations for the first time

Canada and Mexico were formally invited to participate in TPP negotiations in June 2012, and this round marks their entry into negotiations. While the two countries won’t be able to make changes to text that has already been finalised by negotiating parties, they will be adding their voices to some of the still heavily bracketed chapters of the TPP, including intellectual property and investment.

Thailand also recently announced their intention to join the trade talks, and Japan continues to express interest from the sidelines.

2. The agreement is expected to be finalised by October 2013.

The timeline for finalisation of the TPP coincides with APEC meetings in October 2013. According to some reports, so far only three chapters of the TPP have been finalised – Small and Medium Size Enterprises, Co-operation and Administration - and these primarily cover administration matters. Some of the controversial chapters are still heavily bracketed, including investment provisions, copyright and patent, with some negotiators indicating they’re half completed at best. Given some of the detailed, far-reaching proposals tabled by the US, there’s an increasing possibility some issues with text will only be able to be resolved at the political level, perhaps during next year's APEC meetings.

3. Australia continues to fight against inclusion of investor state provisions in the TPP.

The investment chapter of the TPP remains one of the most controversial, both in Australia and abroad. Australia has firmly maintained throughout negotiations that they will not sign up to investor state provisions that would allow foreign companies to sue governments. It’s highly likely issues with the investment chapter will have to be resolved at the political level, and TPP stakeholders should stay alert to political trade offs that could occur, i.e. keeping investor state provisions out of the TPP in return for increased copyright and patent protections.

4. The US has tabled language on copyright exceptions and limitations, incorporating the ‘three-step test’.

The ADA has in the past expressed cautious optimism at the inclusion of language on limitations and exceptions in the TPP, while warning against language that could potentially restrict domestic copyright reform in the digital environment.

Australia is currently undertaking a comprehensive Inquiry into existing domestic exceptions and limitations, to consider whether they’re ‘adequate and appropriate in the digital environment’. The Australian Law Reform Commission, tasked with undertaking the Inquiry, reflects in their recent Issues Paper on the variety of ordinary and entrenched internet activities that may not currently fall within the scope of our copyright framework, like indexing and caching, cloud computing, certain format shifting, social media use of content and digitisation of works by libraries and archives. A hot topic in the Australian Inquiry is expected to be whether Australia should adopt a fair use, or other flexible, open-ended exception.

Given the current copyright reform environment in Australia, it’s essential that negotiations of the TPP guard against restrictive language on exceptions and limitations. According to the current TPP timetable, TPP text will be finalised one month before the delivery of the ALRC’s report on copyright exceptions to the Australian Government, in November 2013. Australia must take care in TPP negotiations not to adopt language that may restrict our ability to make any changes to our domestic copyright regime arising out of recommendations by the ALRC.

5. ACTA text is on the table in copyright negotiations of the TPP

Last week the Australian government tabled their response to the Joint Standing Committee on Treaties’ strongly critical analysis of Australia’s negotiation of the Anti-Counterfeiting Trade Agreement, indicating an intention to ratify ACTA pending release of an independent cost/benefit analysis of the agreement.

Whether that cost/benefit analysis considers the impact of existing protection and enforcement standards entrenched in ACTA, or merely the impact of regulatory changes (which the Government maintains are none) remains to be seen.

Most tellingly, the Government’s response on ACTA indicates Australia’s position on appropriate enforcement and protection standards in the TPP remains unchanged. While a number of submissions to JSCOT’s review of ACTA queried whether our existing copyright standards are even appropriate, and resulted in widespread protests across the EU and US, it’s highly likely these standards continue to be endorsed in TPP negotiations.

We'll continue to keep you updated of TPP developments over the coming week. On Friday, stakeholders will have an opportunity to present to negotiators on issues and concerns arising from various TPP chapters. The Australian Digital Alliance will be participating as part of the FairDeal coalition, highlighting recent economic research from Lateral Economics into the economic benefits of flexible exceptions, and highlighting the ongoing Australian copyright review. Watch this space!

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